1800

ChapterThree 134which conflict with one another (asiayn)56,and one is based on an explicit `illah(cause), easily distinguished, and the other is based on an implicit `illah whichrequires closer examination, the adoption by the jurist of the ruling with the implicit`illah is called istihsän or thejuristic preferenceof an implicit analogy over an explicitanalogy. Basedon the above istihsän may be defined as: The departurefrom a previousruling on a certain issue, which is applied to similar issues because of particularevidence that necessitatesthis departure,asviewed by the jurist, regardlessof whetherthis evidence is nag (textual), iimä ` (consensus),cfarürah (necessity), `urf (custom),maslahiah(benefit), giyäs khafT(implicit analogy), or otherwise, and irrespective ofwhether the method in which the ruling on the similar problem was established bydalil `äm (general evidence), gä'idah fiqhiyyah (jurisprudence rule) or qiyas zahirfairy (apparent clear analogy).57 This is the meaning of istilzrän according to the Hanafijurists or otherswho applied it, especially the Mäliki jurists. 3.3.1.1 The view of Karkhl (d.340/952): One definition which generally gives the meaning of istihsän asunderstood by the jurists of usül (principles), and also reflects the definition adopted by the Hanafi jurists, who consider it accurate and comprehensive, is that of Abü al-Hasan al-Karkhi (d. 3401952). He defines istihsän as follows: \"isti/hsän is when one takes a decision on a certain case different from that on which similar cases have been decided on the basis of its precedents, for a reason which is stronger than the one found in similar cases and which requires departure from those cases\" 58. This definition has been espoused and accepted by many jurists such as Tüfi (d.716/1317), Shiräzi s6Thelinguisticdefinitionof \"asd\"is thefoundationor basison somethingI.t is definedtechnicallyin manydifferentaspectsT. heoriginalcase(a. ) is oneof thefour constituentsof giyäs(analogy).There is, however,adifferenceof opinionamongsjturists on thedefinitionsof theoriginal case. 57Sha`bän,\"Usu\"', pp: 144-145. 58Bukh, \"Kashf% part: 4 p: 3.

The Conceptof Isti, sän 135(d.476/1083), Ghazäli (d.505/1111), and the contemporary jurist Abü Zahrah(d.1974). It contains all types of istihsän in general59 Abü Zahrah (d.1974) commentson the definition, saying that \"This definitionis the clearest one in which the true nature of istifzrän is expressedby the Hanafijurists, highlighting its aspects,its principle and its essence.The basis of isti/xsänis,instead of conforming to one rule, to find a solution with a ruling on the evidence thatis presented;this evidence could be againstthe general principle but in keeping withthe aim of the shari `ah. In respect of the new solution regarding the problem, theevidence is stronger than the analogy.\"60Another contemporary scholar `Abd al-Wahhäb Khalläf, considers Karhki's definition as \"the best\", saying that \"in my view the definition is the definition of Karhki from Hans, Ibn Rushd (d.595) from among the M likis and TUf (d.716) from among the Hanbalis\"61 The clearest and most comprehensive definition of istihsiln that the researcherhas found is that of Khalläf: \"In the view of the jurists the technical definition of isti, sän is the authorisation to depart from an established ruling to a different ruling when legal evidence is presented. The legal evidence which is presented is known as the authority of isti1Näns. 62 To summarise, istifisän is evidence which is preferred over an accepted established ruling after ensuring that this evidence does not contravene the Islamic legal ruling. In fact, Khalläf's definition is not a new one; the only difference is its expression,and thus the meaningsof the two definitions are similar. According to Karhki, \"departure\" must be based on particular evidence which warrants a move from an establishedruing to a different ruling on a similar case.The59Ghazäli,\"Mustagd\", i, p: 283;7uwayni,\"TalkhT$,,iii, pp: 311,313.60AbOZabrah,\"U$1\", p: 251.61Khalläf, \"Mader\", p: 71.62Ibid.

Chapter Three 136purposeof the strongerreasonor evidencerequires the departure;the jurist (m.ujtahid)departs from the establishedruling becauseof the stronger reason. I shall illustratethis statementby giving an example: If a group of people gain unlawful entry into a house, steal goods and decideto load the goods on to one person's back and that person carries the goods outsidewhile the otherscarry nothing, what would happen? According to giyäs, the punishment applies only to the person who carries thegoods.However, according to \"isti1 sän\" the punishment is applied to all of those who are involved in the robbery.63Here, there are two contradictory ac (original cases): The first case is: a group of people encourage one of the group to rape a woman; in this casethere is no conflict among the jurists, who agreethat the penalty is only applied to the rapist. This is a ruling of analogy which is opposite to the ruling of istit%-dn.The secondcaseis: a group of people gather with the intent to attack and kill people robbing them of their goods; here the penalty of highway robbery is applied to all. In this case,there is no conflict amongst the jurists; they all agreethat the punishment is applied to all who are involved in highway robbery. According to the Qur'an: \"The recompense of those who wage war against God and His Messengerand do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off from opposite sides,or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter. Except for those who (having fled away and then) came back (as Muslims) with repentancebefore they fall into your power; in that case,know that Allah is Oft- Forgiving, Most Merciful. \"M After careful investigation, we see that comparing the63S&ajdaST,\"U u1\", ii, 201; 7assäs, \"Fusül\", iv, 238.\" Qur'än: 5/33-34.

The Concept of Istihsr n 137house robbery to highway robbery is a clearer solution than comparing it to rape.65The departure from one case (ag) to another case (as1)because of the stronger reasonis called istihsän. This definition of istibsr n was chosen by Ibn Qudämah A1-Magdisi(d.620/1223 )66 Shiräzi (d.476/1083),who is a follower of the Shäfi`i school,says:\"If Hanafiand Karkhi (d. 340/952) say that \"Istihsän is the giving of a ruling with the strongerreason rather than the weaker reason\" then we agree with it, and therefore the disputebetween us have been solved. \"67 After quoting the definition of Karkhi, Ghazäli(d. 505/1111) says that there is \"no dispute against the definition\". 68 Ghazä.1 definesistihsän as: \"A departure from the established ruling to a certain case which is similarto previous cases where this ruling was applied due to particular evidence taken fromthe Qur'an or the Sunnah. 69 Ghazäli s definition differs from that of Karkhi's. Noneof the jurists among the Shäfi`T school of thought has defined istifzrän as Ghazäli did,identifying different kinds of istihcän such as, isti/zsän based on \"nass\" (textualevidences), which is based on the Qur'an and the Sun nah. However isti/zsän is notconfined to these two, and Ghaz-ali's definition is narrower than that of the Hanafis'view because it is far less comprehensive in its scope. While citing Karkhi's definition, Sarakhsi says: \"the precedent which is set aside by istihcän normally consists of an established analogy (giyäs) which may be abandoned in favour of the superior proof, namely the Qur'an, the Sunnah, necessity (darürah) or a stronger analogy (giyas)\"70.b6666767\"905J1SGGSbhaahh5niraar,BaäAzzkazßahdlsll,istr,\",sT\"F\"S\"n,AA\",hAuIla\"--1SMsMr-khMeuuassaraIrtt'vbh!aa-sgg,LüRdi2uil\"\"a'm,,,3wa9dxvv,a'.,..t1i\"iii,,,4, 52pp9.8:a732r0t.7.i3, .p: 497.

Chapter Three 138 Karkhi's definition has been criticised for involving in isti4sän theparticularization of the general (takhsi) and naskh (abrogation) in spite of the factthat they do not belong in istifaän. 71Muhammad b.Husayn Bahit (d.1354/1935) saysthat if Karkhi definitely meant such a particularization, then they would have a rightto accusehim; however, he continues, it was not actually meant; what was meant inhis definition was the particularization of analogy by the evidence of implicit analogy,text, ijmä`, etc. Istihsän might be considered as part of particularisation, but theconcept of abrogation (naskh) is completely different to istihsän. Abrogation isconfined to the time of the revelation, while istiiasänis not. The objective of isti, sän isusually to move from difficulty to ease;however, abrogation is not considered in thatcontext.723.3.1.2 The view of al-Jaffä (d.370/981): The definition of istihsän according to Jas s is the \"Departure from a rulingof qiyas (analogy) in favour of another ruling which is considered preferable.\"73According to the translation of Ahmad Hasan: \"Istifxsän means to depart from theobvious analogical reasoning (q yas jali) and to adopt that which is better. ,74 Jassä points out that istifzsänis performed in two ways: The first: a parallel case (far')75 which has similarity with two original cases (asi), where the rulings in those casesare different. Istihsän involves abandoning one of the original cases and taking the other as a basis because of the preference of theJurists.71Taftazänl, \"Taiwilt', ii. 163; BukharI, \"Kashf', iv, 3.'?7\"S'3BKFHaaaarhms'uaas(nlpar,,a\"inAra,nl\"alRelolagcf iacsaaell-)K:RpTiu:ehu2aiis4tsf;o',isnAialn-pJgppa\"a:,srsa3psl7:läe84sl-13,o07\"r.A9f.lr-eFswhscüal\"s,e v. iv, p: 234. covered by the text (nass. A jurist which is notfinds out a rule of law for this case by the use of gi),äs. This is also known as magfs (the casewhich isanalogically compared with a textual rule); See: Ahmad Hasan \"Analogical Reasoning\", p: 16. Seealso: Al-7aä, -UXr,, p: 226; Ghazäll, \"Al-Mscstaä\", p: 324; AmidT, \"AI-I/ cäm\", v: 3, p: 276; Basri,\"Al-Mu `tan 1\", v: 2, p: 703; Ibn Amfyr al-Hajj, \"Al-Tagrir', 3/124.

The Conceptof Istihscn 139 The second: is the particularisation of a ruling with an existing legal cause(`iilah) 76 This is achievedby considering the text, iadith, ijmd' (consensus),anotheranalogy or custom.77 Jassäs has considered istiludn in the second type as aparticularisation of ruling (hohn) with the legal cause; however it is not aparticularisation of a ruling (hukm). Sarakhsi and Bazdawi and most of the Hanafijurists do not acceptthis theory.793.3.1.3 The view of Bazdawi (d.482/1089): Bazdawi defines istihsän as, \"It is one of the two giyäs\"79. `Abd al-`Aziz al-Bukhäri, who interprets UAI al-BazdawT,points out that, \"it is a particularisation ofgiyäs (analogy) due to stronger evidence.\"80 Al-Izmiri (d.1102 A.H) agrees withthisß1 Khalläf and others cite Bukhäri's definition as though it was Bazdawi's82,however, it is not. The mistake was made when Bukhäri (d.730 A.H) quoted the definition without statingthe originator, saying that \"as the masterpointed out\". 83 The following example, concerning the issueof prepaid sale (salam), servesas an illustration of Bazdawi s definition, and the \"particularization of giyäs\". In a normal sale, the good should be available at the time of purchase, as stated in the /vdith. The Prophet explained to a Companion, Hakim b. Hizäm, when askedwhether he could sell a commodity prior to purchasing it himself, \"Sell not what is not with you\". \" According to giyds, this jvdith means that the salam contract is invalid. Nevertheless,salam hasbeenvalidated by the expressterms of other hadith in spite of 76Jassäs,\"Al-Fusül\", v. iv, p: 234. 77Ibid, pp: 243-49. ý For particularization of the cause(takh$sal-`illah) see:Jasses,\"Fusel\", iv pp: 243-249; SarakhsI, `°Usul\", ii. 204-208; BazdawT,\"U$ l\", iv. 7-32; Bukhäri, \"KasFf', iv. 8,32; Nasafi, \"Kashf al-Asrar\", H. 293-299; Ibn Amir al-ft, \"Tagrir\", iii. 177. 79Bazdawi, \"UsO', iv. 3. B0Bukhäri,\"Kashf', iv. 3; Taftazäni,\"Talwiil', ii. p:163;Ibn al-Häjib,\"Muntaha\",p:207 81IzmlrI, \"Mir'ät al-U5ä1\",ii, p: 335. B2Khalläf,\"Masäder\",p: 69; ZaydAn\",Al-Wajrz\",p:217. \" Ibrahim Kafi Dönmez, \"Isläm Hukuk'unda Kaynak Kavrame\", unpublished PhD dissertation, Istanbul, 1981,pp: 128-129 84See:Karnali, \"Istihsän\", p: 47.

ChapterThree 140the non- existence of the goods at the time of purchase. Furthermore, a contractcannot be attributed to the future existence of usufruct because monetarycompensationsarenot open to attribution to something in the future. Qiyäs invalidatessalam but the Sunnah approves it, for the Prophet says: \"Whoever concludes salam,let him do so over a specified measure, specified weight and specified period oftime.\"85Eventually, salam has beenvalidated by way of isti1fsän, which is contrary togiyäs. When we reconsider Bazdawi's definition we see that there are two kinds ofgiyäs: the obvious (jali), and the hidden or assumed(khal). Jai is the one which iseasily intelligible to the mind while khafr requires deep consideration and pondering.khafi is stronger in effect than jali, thus khaf( is called istikan or giyäs mustaiisan (approved analogy).86In certain situations, qiyas is called istiIndn owing to the powerof its evidence.87Shaybäni says, \"Some of the giyäs involves istihsän\".88There are minor differences between the two. IstiInan is more general than giyäs khafi, because the former applies to things other than giyäs khajT. Sadr al-Shari`ah (d.747 A.H) observes that when the word giyäs is used absolutely, it means giyäs jar; when the word istilzsänis used it meansgiyäs khal. 89Bazdawi saysthat the giyäs which has a weak effect is called giyäs, and the giyäs which has a strong effect is called istihsän.90 3.3.1.4 The view of SarakhsT(d.483/1090): Sarakhs defines istiftsän in a way that is different to other Hanafi scholars; he looks at the nature of istiIndn, the wisdom behind the ideas of istihsän, and the wisdom of its use. Isti judn representssimplicity, easeand the lifting of difficulties.85Bukhäri, \"Sz 11', iii, 243 No: 441.86Sarakhsr,\"Al-Mabsüt', x, 145.g7Bazdawi, \"Usül\", iv, p: 6; Nasafii,\"Kashf', ii, pp: 293-204.ea7a55ä5,\"FusüP', iv, pp: 234,237-238.89Sadr al-Sharl'ah, \"A1-Tawdh \", ii. p: 82.90Bazdawi, \"USW', ii. 84.

The Conceptof Istilzsän 141 Sarakhsi defines isti(sän as \"abandonment of an opinion to which giyäs wouldlead in favour of a different opinion when supportedby stronger evidenceand adaptedto what is acceptableto the public.\" Sarakhsi has mentioned four other definitions.These definitions have been quotedby `Abd al-`Aziz al-Hulwäni (d.44811050)91: a- `it meansto seekeaseand conveniencein legal injunctions whether al-khäs(the specific) or al-'dm (the general)\", b-\"to depart from giyäs (analogy) and adopt what is more suitable for thepeople\" c-\"to adopt what is accommodatingand to seekmildness\" d-\"to adopttoleranceandto seekwhatgivescomfort\". These definitions indicate the general idea of deviating from a law whichcauseshardship and adopting or creating a law which provides easeand comfort. One of the main objections levelled against Sarakhsi and his definitions is this:is the departure from one ruling to another, on the ground of ease,really based on evidence, or is it merely a reflection of personaltaste or whim? Sarakhsihimself doesnot explain satisfactorily. He says that, \"briefly, those expressions mean that abandoning hardship for the sake of ease is the base of the religion\" quoting the Qur'an: \"God intends for you ease,and He does not want to make things difficult for you.\"' The purposeof the divine injunction is to provide easeand comfort. Sarakhsi looks at isti¬lsänfrom a different perspective and categorises it in two types: the first one is called: \"ijtihäd al-tagdtff', which allows jurists all to give rulings and on which there is no cause for disagreement amongst the scholars. The second one is the evidence (dalil), which is in the mind and is set against the explicit analogy. According to Sarakhsi, evidence which opposes the established ruling91Önder, \"Haneft Mezhebinde\", p: 77.92Qur'an: 2/185

ChapterThree 142appearsstronger after considering evidence concerning similar cases;therefore rulingwith evidenceat hand is called istiIndn.933.3.1.5 The view of Nasafi (d.710/1310): Abn al-Barakät al-Nasaff has defined istihsän as: \"Evidence which takes theopposite side to giyäs jail (obvious analogy), or it is the opposing evidence to theobvious analogy (giyas jai)\". 94 It would appear that the differences between theprevious definitions and this one are slight; the meanings of the two definitions are forall intents and purposesthe same. As I explained regarding the issue of forward sale (salam), the obviousanalogy (qiyasjali) requires invalidating the sale, and then the departurecomes owingto hidden analogy (khaf giyäs), which validates the salam, for the simple reasonthatthe effective causeis obvious and visible. However, other evidence, which is stronger,affects the ruling and became opposite to the established evidence. Therefore juristspractise istifzcänwith the stronger evidence that naturally is going to be the oppositeof the giyäs. The evidence has to be nass (from the Qur'an or the Sunnah) orconsensusor necessityand hidden analogy.3.3.1.6The view of Ibn Humäm (d.861/1457): The Hanafijurist Ibn Humäm defines istifnän as \"An evidence which is agreedupon textually or consensually,by necessity and by hidden analogy, if it happenstobe opposedto a qiyas which leads to its understanding.\" A similar definition is: \"Theevidence which contradicts the apparent analogy and which needs to be understoodthrough contemplation.\"95 In addition, a similar definition was reported in Rahawi s(d.774 A. H) footnotes; however the commentator did not mention the term93Sarakhst,\"U I\", ii, 200.94Nasafi, \"Kashf', ii. p: 164.9sRahawi,\"hiyät\", p: 811.

The Concept of Istihsän 143\"necessity\", and this is explained in the following statement. \"The general opinionsettled on evidence whether agreed upon, textually, consensually, or by hidden giyäs.If it happens to be the opposite of giyäs, which understanding leads to, this name willnot be given to the same evidence without opposition. \"96 With a closer look at thisdefinition, and in addition to what Rahawi mentioned, despite the fact that the wordsused differ substantially, the meaning remains more or less the same as the previousone. The term istihsän which is used in fqh (jurisprudence) books is mostlyconsideredto be giyäs khafä(hidden analogy)97It has been pointed out in works suchas \"Talwif'98, \"Fath al-Ghaf är\"99, \"Mirät al-U, 1s100a,nd \" fäshiyat al-Nasarnät al-As((r\"101 that the technical meaning of istiIndn asusedby jurists is \"hidden analogy\", or istihsän which was based on evidence such as nass (text), ijma` (consensus), darirah (necessity),which opposedexplicit analogy. One of the outstanding scholarsof the Ottoman Empire in the last period `Ali Haydar Afandi (d.1936), also held the view that istihsän is hidden analogy, saying: \"There are two types of giyäs: one is explicit analogy, known technically as \"giyäs\"; the other is \"hidden analogy\" (giyäs khan, known as istihsän\".1°2 3.3.2.0 The view of istihsän among the Shäfi`I Jurists: The Sh5fi`i School definitely rejects the principle of isti/uän as a source of Islamic law. Imam Shäfi`i103 (d.204) wrote a book titled \"Ibtdl al-Istihsän\" (Invalidating Juristic Preference) and declared famously: \"Whoever approves of96Ibid, p: 812.9' Ansär1,'Fawäti, l', ii. p: 320.98Taftazäni, \"Talwih\", ii. P: 163.9' Ibn Nujäym, \"Fath al-Ghaffär\", iii. p: 30.10°Molla Husraw, \"Mirät al-U91\", ii. p:335.101Ibn Abidin,Muhammad`Amin (1252/1836)\", 1ashiyätal-Nasamälal-Ashär\",Mu$ afäBAbal-Halab3C, airo,p: 150.102`Ali Haydar,\"Usüii Figih\", p: 387.103For more about Imäm al-Shäfi see: Abü `Iyd HasanMuhammad Salm, \"At-Imam al-Shafi7waAtharuhu fiU$21 al-Figh\", unpublished PhD dissertation at Faculty of SharIah and Qänün Al-AzharUniversity, Egypt, 1976.

ChapterThree 144juristic preference is making himself the lawmaker \", 104However, Shäfi`i jurists havegiven some definitions of istihsän, but the definitions that they provided are not theirown, and they have taken what they have understood about istifisän and attributedthose definitions to the Hanafi School. in order to explain the opinions of the `ulamä' who reject istiludn, we willpresentsomeof the statementsfrom Shdfi`i's \"Al-Umm and al-Risälah\". In the chapter entitled \"Invalidating Istihsän\" in \"Kitäb al-Urnen\", Shäfi`i says: Any qualified Governor or mufti is not permitted to rule or issuefatwä unless it is supportedby an obligatory report from a source such as the Qur'an, and then the Sunnah, and then what the \"people of knowledge\" agree upon, or from giyäs that is basedon someof thesesources.He is also not permitted to rule or issuefatwä by way of istiIndn since istihsän is not obligatory in any of thesemeanings. He then quotes the Qur'an, citing 75:36 \"Does man think that he will be left uncontrolled, (without purpose) sedan\" The people of knowledge never disagreed over the Qur'än, as I know, that sudan is the one who neither is instructed to act nor prohibited from taking action. According to Shäfi`i, the word sudan, which Yusuf Ali translates as `uncontrolled\", denotes someonewho is neither commanded to perform an action nor prohibited from carrying it out. Whoever gives a fatwa or rules in a manner opposing God's commandswill fall under the category of sudan. God makes it known to him that He has left him assudan, and that if whatever he saysis opposed to what the Qur'an hasrevealed, he has therefore opposedthe path of the Prophet and the general rule of the group of scholars who narrated the Prophet's words. Shdfi`i saysthat if anyone were to ask, \"Where in the Qur'an, or the practice of the Prophet, do you find authority for rulings?\"104AnsAri, \"Ghayat al-Wuq7-P',p: 139; Alwäni, \"The Ethics\", p: 75; Ghazäli, \"Musta spa\",i. p: 274, ibid,\"MankhEP', p: 374; Isnawi, \"Nihäyat at-SM\", iv. p: 399.

The Conceptof Istil sr n 145 He should be shown 6:106 and 5:49: \"Follow what thou art taught by inspiration from thy Lord: there is no god but He: and turn aside from those who join gods with Allah. \"los And \"And this (He commands): judge thou betweenthemby what Allah bath revealed,and follow not their vain desires, but beware of them lest they beguile thee from any of that (teaching) which Allah bath sent down to thee. And if they tum away, be assured that for some of their crimes it is Allah's purpose to punish them. And truly most men are rebellious\". 106Shäfi`i then relateshow a group of people asked the Prophet certain questions aboutthe `People of the Cave' (ahl al-kahf), and how the Prophet replied that he wouldrespond to their questionsas soon as he had received revelations concerning them viathe angel Gabriel; God then revealed verse 22 and 23 of the sura entitled al-Kahf.Similarly, when the wife of Aws ibn al-Sämit came to Muhammad with complaintsagainst her husband,the Prophet did not reply until the first verse of the sura entitledal-Mujddila had been revealed. Another example was when al-Ajläni came to theProphet with the allegation that his wife had committed adultery. Muhammad repliedthat nothing had yet been revealed concerning the issue of adultery; when verseswereeventually revealed, the Prophet called both of them to bear witness, in accordancewith the dictates of the Qur'an: \"0 David! We did indeed make thee a vicegerent on105Qur'an: 6/106106Qur'an: 5/49

ChapterThree 146earth: so judge thou between men in truth (and justice): nor follow thou the lust (ofthy heart), for it will mislead theefrom the Path.*A07 According to Shäfi`i, nobody is ordered to rule according to /Izq (truth) unlesshe knows what hezqis and fxxqcannot become known unless it is from God either astext or by indication, as God made fxxqin his Book and in the Sunnah of his Prophet.Hence, there is no problem that one faces for which the Book has not given anindication of a solution, either in the form of text or in general.Shafi`i adds that if oneasks,\"what is the text and what is the generality?\", text is what God has prohibited orpermitted textually, such as marriage with mothers, sisters, grandmothers, aunts andall others mentioned; all other women are permitted. He had also prohibited carrion,blood, pork and fawdhish (corruption) hidden or explicit, as well as other things.These are all clear in the text. As for generally, this is whatever God has ordainedconcerning salät, zakit and hiajj (pilgrimage), and in a general sense;it was down tothe Prophet to show how to perform the ritual prayers, the numbers of prayers, and itstimes and the actions performed during prayers. He also introduced zakät andspecified the kind of money, time and amount, and he also explained hiajj and itsrequirements\".log In the samemanner Shäfi`i continues: \"I am not aware of any knowledgeable people who can give accreditation to any thinkers and literate people to issueafatwä' or rule according to his own opinion, if he is not equipped in the field of giyäs which revolves around the book (Qur'an) or the Sunnah or ijmä ` and `aql, which explains the similar cases. If they claim107Qur'an: 38126108ShAfi'i, \"Al-Umm\", v: 7, pp: 298,299.

The Concept of Isti, sän 147 they are capable of issuing afatwd' or ruling, we would ask them why thinkers who are more capable than many of those who are knowledgeable in the Qur'an, the Sunnahandfatwä', were not permitted to have a say on issues that were revealed, since both groups know that isti/zsanis not from the Qur'än, the Sunnah, or ijmä`, and they are more intellectual and more capable of explaining than their public. If it is said those who reject istifzsan have inadequate knowledge of usül, then you will be asked, \"What evidence do you have in your knowledge of usül if you rule without any base of usül or giyäs based on usül? Do you think that the scholars who have no command of `ilm al-usl will not be able to effect giyäs in what they do not know, and that your knowledge of usül will enable you to perform giyäs or permit you to depart from such giyäs based on such usül?If you arepermitted to depart from theseucl, then they are permitted to rule as you do; then they will depart from giyäs based on this u$ül or they will get it wrongs1°9 Shäfi`i continues: \"If a ruler or a mufti in an issue in which there is neither a text reported or giyäs says \"I prefer\", then he has no choice but to acceptothers who pass rulings opposed to109Ibid. v: 7, p: 300,

ChapterThree 148 his on the same issue. Then different rulers (mufti) in different places rule according to what each of them prefers, resulting in various rulings on one issue. If this is permitted, they will ignore the others and rule as they wish, and if it is not permitted then they are not allowed to rule as they wish. If the one amongst them who departsfrom qiyas says that people should follow what he says,then he will be asked: \"Who ordained that you should obey others or that others should obey you? if any one claims the similar, will you follow him? For my part, I will only follow the one I have been asked to pursue. Similarly, no one is obliged to follow you becauseobedience is only to the one that God and His Prophet ordained. The /aaqto follow is only what God and His Prophet ordained. God and His Prophet indicate textually or by indications: if God enjoins prayers on one who is incapable of locating the direction of the Ka`ba. He makes it possible for him to discover it by the way of ijtihäd by seeking the indication to that direction\"l 10 These are some of the arguments that Shäfi`i mentioned in the chapter\"Invalidating istitndn\" in the book \"Al- Umm\".110Ibid. v: 7, p: 301

The Conceptof IstiInan 149 Anyone following the statements of Shäfi`i will observe that he does notrecognize istihsän in any form whatsoever. As he explained, the rulings can only bededucedfrom the Qur'än, the Sunnah,ijmä `, giyäs. As far asistihnän is concerned,Sh5fi`i doesnot recognize it as a basis to issuea ruling. He says that acting according to istitudn leads to situations where humanbeings areleft in a stateof lawlessness(sudan), that is, what ever his desiredictates tohim and is naturally at odds with the abovequoted äydh (verse). Actually, everybody, including those who recognize isti/zsän, reject istiAvanthat is basedon personal desire. Sh5f.i`i said, with regards to the case of the thinkersand the literate, that if they were allowed to rule by istihrän it would be incontradictionto theuseof istit,sän,asthosewho recognizeistihsänunderstandthat itsmeaning is the departure from giyäs to a stronger dalil. The situations are such thatthe dalil can only be expected from a mujtahid who is competent in the sharr'ahrulings and the dalil, while it is unacceptablefrom thinkers and the literate who arenot qualified. As for the allegation of adultery against the wife of Aws, the Prophet waitedfor a revelation so that he could issuea ruling. It is generally acceptedthat during the period of ongoing revelation, there was no need for the application of istihsän, giyäs or ijtihäd. With the death of the Prophet, the revelation ceased,and so some form of ijtihäd, and istihsän, was needed. This is discussed in the section on \"invalidating istihsän\". As we have seen, Shäfi`i does not recognize istihsän completely, as is mentioned in the book of \"al-Umm\". In his Risälah, in the section \"tahrim al- istihsän\" Shäfi`i regards istiluän as talazzuz (deriving pleasure).\" This does not differ too muchfrom what is reportedin \"al-Umm\", exceptin the formulation of the111Shäfi`%\"AI-Risälah\", v. 3, pp: 219,220,221.

ChapterThree 150words. As far as invalidating isti, sän is concerned, the statements in both books arethe same; however, the statement in the \"Risälah\" mentions that it is prohibited(ixrräm) for anyone to act according to istihsän. The \"Risälah\" statement rules ineffect that acting according to istilzsän is irardm (prohibited).3.3.2.1The view of Shiräzi (d.476/1083): Another definition of istihsän, which is attributed to Hanafis,is one given by aShäfi`i jurist, Shiräzi, as: \"Something which is considered good by the faculty ofreason (`aqi) and depends on assumption rather than evidence.\"112 However,according to Zarkashi (d.794/1392), this definition is not quoted directly from Abü Hanifah,but is simply Shäfi`is interpretation of what istii sänmeantto Abü Hanifah.113According to Shiräzi and Zarkashi this definition and attribution was rejected by the Hanafi's1. 14 The Shäfi`is consideredthat the definition attributed to Abü Hanifah was used in conjunction with a case where there was no evidence to support the practice of istihsän. For example: If a man commits adultery and the four witnessestestify that he has committed the crime, the punishment (ixý is to be inflicted on the accused,on the basis of istihsän, in the opinion of Abü Han1fah.Generally, of course, there should be no punishment if the evidence is doubtful. Abil Hannahmight have interpreted the evidence by saying that each one of the witnesses might have seen him at different moments. This would not constitute the standard evidence according to Shiräzi, and would save the accused from conviction. Alternatively Abü Han1fah could have argued that the fornicators might have moved around during their act of fornication and, as a result, been seen by four different people, at four different moments, from112Mäwazdi, \"Adab ai-QaQP',i. p: 651.111134ZSahrirkäazsTh,i\",S\"hAal-rBpaahlr-Lawl-nMahu' ffl\", vi. p: 94. \"AI-Bahr\", vi. p: 93. \", ii, p: 969; Zarkashi,

The Concept of lstihsän 151four different positions, thus explaining the divergence in testimonies. But for Shiräzi,this cannotbe evidence;it might be only an istzhsän,which is not evidence.115Ghazälisaid that it was a ridiculous law based on istihsän that condones the shedding ofMuslim blood.116 There is another definition given by the Shäfi`i Bishr b. Ghiyäs (d.218/833)which is attributed to Abü Hanifah: \"lsti/xsän is a departurefrom analogy that is basedon personal opinion, in which case it can be considered valid without the support ofevidence.\"' 7 Zufar gives a similar example in Sarakhsi's book, al-Mabsüf \"If a mancommits adultery andthe four who witnessedthe crime testified that he committed the act but in different corners of the house,the punishment (hrzdd)shall not be inflicted on the accusedon the basis of giyäs (analogy). Since the act is seenfrom two different sides of the room, it could appearthat the act of adultery took place in two different rooms, and, therefore the punishment (faadd)is applied to the adulterers according to istifasän; this is the opinion of AbU Hanifah and other imams. The witnesses are unanimous on the adultery and only disagree on what they actually witnessed, and thereforeit shouldbe acceptedthat the crime of adultery was committed and that punishment should be administered,even if it was impossible to describe the dressthe woman was wearing at the time or to observeevery detail. The Hanafisopposedthis definition, as the evidence was not conclusive in the Hanafi Us l (methodology) books. This invites doubt about the attribution and the possibility of its accuracy. The doubt caused al-Bag! (d.436/1044) to respond by saying: \"the advocatorsof the conceptof the definition know the purposeof their115Shlräzi, \"Sharp\", ii. P: 970.116GhazälT,\"AI-Mankhül\", p:377.10Zarkashi,\"Ai-Bahº\",vi. p: 93; Shirazi,\"Sharp\", ii. p: 970.

ChapterThree 152ancestorswho evidently statedin many cases`we approved istihsärndependingon thisathar (tradition) and evidence'. We understand that they do not approve istii sänwithout positive evidence.\"118 Therefore, what al-Basri said confirmed that theattribution of the definition to Abü Hanifahmay be incorrect.3.3.2.2The View of GhazAlT(d.505/1111): Ghazäli gives three different definitions of istilndn. The first he describesas:\"That which the jurist prefers using the intellectual faculty; the Jurist (al-Mujtahid)useshis own judgement to arrive at the decision.s119After giving the definition, hecriticizes it. According to him, before the appearance of istihsän, the Muslimcommunity had unanimously acceptedthat the mujtahid would not give any fatwä'(ruling) without depending on adillah al-shari`ah (proofs of Islamic law) rather thandepending on his own desires. Ghazäli rejects the concept by saying, \"We approve(nastahsinu) the invalidation of istilzrän\".120 Amid! (d.631/1233)121 and Isnawi (d.772/1370)122also have mentioned the samedefinition. Scholars other than those of the Shäfi`i School also mention a similar definition. One such scholar is Mob!, who added the expression \"and tends to it by his opinion\". 123 Shäiibi, when discussing the definition, explains that when looking closely at the definition and those who adopt it, it is their custom to use istihsän to give the people their desires; however, this should not contradict the evidence of shari `ah. In such a case, ruling by istit sän is acceptable as long as it does not contradict shari `ah.1e Basri, \"AI-Mu`tamad', ii, p: 295.19 Ghazäli, \"AI-Mesta a\", i. p: 137.120Ghazäli, \"AI-Mesta fX', i. p:138'Z' Amid, \"Al-Ihn\", iv. p: 138.122Isnawi, \"Minh4i\" iii. p: 141.123Shätibi \"AI-I`tisäm\", ii. p: 136

The Conceptof lstihsän 153 Shätibi continues, \"This definition may apply to certain acts of worship whicharethe evidencethat is the invention of certain people but which have no textual basisin the Book of Allah. Such definition is aimless since it follows that istihsän has to bedivided into the good (Ixasan)and the bad (gabih), which meansthat not all of istihsänis correct. It could be understood that Shätibi did not accept this definition; the mind(`aql) often acceptsthat which is incorrect and based on desire, even if it distancesone from what is right (/xiq). Shätibi mentions a comment that contains a similarmeaning to such understandingin \"al-I'tisäm\". He says: \"Scholars agree, if customsand habits lean towards this definition, it is acceptableto have a ruling (hinan) basedon istihsän, though this ruling must not contradict the sharT-`ahT. his shows that some acts of worship can be without textual basis, thus leading to what is known as \"bid`ah\"; consequentlyit has to be either good or bad since not every istihsän is right \"124 Shätibi statesas an objection to this definition that \"whatever the mujtahid selects by using his mind (`aql), leads to another objection which is: \"Is it with evidence (dalzl) or without evidence?\" Scholars in general concur that it should be basedon evidence(dalrl) but there is nothing in the definition that shows reference to evidence (dalil). Shätibi continues: \"If the opinion of the scholar is basedon evidence of Shan `ah it could have been more accurateand representativeof the case,but since such things are not mentioned in the definition, the definition consequently is no longer valid for istifsdn\" It is possible that the scholars who gave a different definition of isti/z an reflected their own point of view without evidence. The definition that has been criticised and rejected by al-Juwayn! (d.478/1085), his pupil Ghazäli and other Shäfi`i scholars such as Amid and IsnawT, hasnot beenfoundin anyHanafiU041s1ourcesT. he reality is thatAbü Hanifahandhis124ShätibT\"Al-I `tisäm\", ii. p: 136

ChapterThree 154followers have used isti?i än in their judgements. However, after examination andinvestigation of the examplesof istihsän, we can clearly seethat theseexampleshavebeen based on a validated proof and its preferred analogy (giyäs) with a legalreason.125 Consequently, whenever they approve istituan it is simply a case of ijtihädbasedon personaldesire,becausethey have performed istihsän after investigation andhard work. If it is merely based on personal desire, then laborious work isunnecessary1. 26 Nobody can reject the role of `aql (intellect) when dealing with matterspertaining to people or the methodsof finding evidence to reach a ruling or the reasonwhy it is acceptablesince it is not againstthe aim of shari `ah.As al-TUfi (d.716/1316)explains, `The definition is accepted according to what is generally agreed byscholars,if it concordswith shari`ah proof; otherwise it is rejected.\"1273.3.2.3 The view of Amidl (d.631/1233): Amidi, a Shafi`i jurist, views istitnan as a proof that action should be basedon evidence. He considersthat istifzsänis not a subject of disagreementif it is supportedby text, or ijma ` or others. In such situations there is no disagreement over its validity as a proof, although there can be disagreementsover the terminology. Actually, his opinion is that the disagreementstems from the use of different words to describe istihsän. Additionally, this disagreement is of no use since the words are used to describe what the mujtahid prefers based on dam and the public preference (maýlafaahmursalah) without any proof of shari `ah. The meaning here is125`Iwad, \"Ai-Istihrän `inda `Utamä' U;SUP'v, : 5, p: 31.126Ibid: p: 32.127Tnfi, \"Shari)Mukhtasaral-Rawdz\",iii, pp:190-193.

The Concept of Istihsän 155isti/tsän that is based on a darn thus becomes a proof, and there is no room fordisagreementover suchan issue. It can be concluded that Amid! views istilzsän as a proof so long as thedeparturefrom giyds stemsfrom the availability of a stronger dalili28. Amidi has defined istifxsän as: \"An evidence embedded (yanqadihu) in themind of the jurist that words will not assisthim to express or show.,'129Ghazäli saidmuch the same in his second definition. 130 Shätibi gave the same definition; 131asimilar definition was given by Isnawi, although he applied different words. Hedefined istilndn as: \"Evidence embeddedin the mind of the jurist, but unexpressedbyword.s132Similar definitions were also given by Ibn al-Subki, Shawkäni, al-Taftazäni,and Shaykh `Abd Allah Diräz (d.1351/1932),who defines istihsän as: \"Evidenceembeddedin the mind of the jurist who finds difficulties to expressit in words\".133 Criticism has emerged about whether the definition hesitates betweenacceptanceand rejection. The explanation for this is asfollows: the first section of thedefinition \"evidence embedded\" makes one wonder what is meant by \"embedded'; itis meant as confirmation of the evidence and it should be applied, which is the general agreement.There is no lack of explanation on the part of the jurist. His explanationmay differ to what others understand, but the jurist himself does not have any problems becausehe understandsthe evidence. If, however, the \"embedding\" is taken as a knowledge of the evidence, but has been mixed with some doubt, then it will be rejected according to the general agreementof the scholars. A hukrn (ruling) can not128Amidt-, \"Al-Ihkäm\", iv. p: 138.129Ibid, iv, p: 138.130Ghazdli, \"AI-Mustasfa~',i, p: 138.131Shätibi, \"Al-I'ti. äm\", ii. P: 137.132Isnawi, \"Minhäf', v: 3, p: 140.133Ibn Subki, \"Sharhal-Jalät al-Ma/aulli', v: 2, p: 395; Taftazäni, \"Talwih\" v: 2, p: 8l; Diräz, \"Sharka! -Muwäfagät\", v: 4, p: 206.

ChapterThree 156be adoptedwith doubt and probability. 134These objections, which Ghazäli and `Adudal-Din al-Iji (d.756 AH) report,'35show that this definition is not valid for istihsän. It is essentialfor hukm to be dependenton evidence that is clearly taken fromshari-`ah.This is to enable the jurist to distinguish whether the evidence is true orfalse.Thereforeif the evidencecould not be expressedi,t follows that /ukm cannotdependon it.3.3.3.0 The view of istikan according to the Mäliki School: It is generally accepted that Mälikis recognize istihsän, as is clear from thedefinitions mentioned previously in the first part. It was narrated that Imam Mälik(d.179 AB) said, \"lsti&dn representsnine-tenths of human knowledge' 136A. ccordingto Ashba' adopting istihsdn may outweigh giyäs.137 If this is so, then we can not imagine isti, sän being defined by some as\"Whatever is preferred by mujtahid rationally and through self inclination based onpersonal opinion\". Nor is it \"a proof that emerges(yangadihü ft nafs al-mujtahid) inthe mind, but the mujtahid could not express it in words\". Such istihsän cannot beviewed as nine-tenths of human knowledge; nor will it outweigh qiyas as one of theproofs. Shätibi says, in what could be seen as support for istihsän, \"I used to agreewith those scholars and dismiss istihsän; however, it gained support and wasstrengthened,since we can find a number of rulings (fatilwä) of the Caliphs and the learned Companionsand those around them, and so there canbe no denial. After that Ichangedmy mind andbeganto support it. \"136 It was reported in \"Sharp al- `AOR(`falä al-Muntahaý' that \"istifzsän, over which there is disagreement,went unnoticed because they mentioned in its interpretationIII Al-Majallah: clause:74. v: 2, p: 288.135GhazalL,\"Al-Mustagd', v: 1,pp: 138-139; Ij% \"Sharhal-Mukhtasar\",136Abü Zahrah, \"Usül\", p: 207; Shätibi, \"A1-I'tisam\", ii. P: 137.137Ibid: ii. p: 138.138Ibid: ii. P: 147.

The Concept of Istilxsän 157issues that do not amount to a basis for disagreement. Some of these issues aregenerally accepted, others lie somewhere between being generally accepted andrejected.As to those who define it aswhat emerges(yangadihufl nafs al-mujtahid) inthe mind of the mujtahid but which can not be expressedin words, this constitutes aquandary between acceptanceand rejection. Otherwise, what does it mean to sayemerges(yangadihu)? If it means the realization of confirmation of evidence, thenacting according to it becomes obligatory by general agreement,irrespective of theinability to express it in words. If the meaning of it emerges (yangadihu) and isdifficult to expressin words becauseone has doubts about the da!rl, then isti/zsdnisrejected in this caseby general agreementbecausethe rulings are not confirmed byprobability and doubt. If istilzsän means that the mujtahid prefers rational thinkingand is inclined to his own opinion, then this is rejected by general agreement.Sincethere is no difference betweena member of the public and a scholar, this would springfrom personal desire. If however, istiluan means the departure from a ruling on asimilar case to a different ruling due to stronger evidence, then this is generallyacceptedandthere is no disagreement\".139 It can be concluded from both of the above statementsthat the Mäliki Schoolrecognize istifzrän and acceptit is a proof on which a number of figh caseshave been established. Shawkäni (d.1834 AD) saysthat the view of Qurtnbi (d.671 A.H) is that Im .m Mä1ik denied istifrsämand did not adopt it. Shawkäni also claims that it was Imäm al- Haramayn (d.478 AH) who attributed the recognition of istihsän to Imam Malik. According to Shawkäni: \"Imäm al-Haramaynattributed istifxsänto Mälik and Qurtübi139Taftazani, \"Sharhal-`Acid', v: 2, p: 288.

ChapterThree 158denied istihsän and said it is unknown according to Imam Malik's madhhab\"sao Thisstatementis in fact at odds with the reports in the books of the M Ji1 School. Perhapsthe readerwill note, from the statementswe have reported that there isno indication anywhere of the denial of isti1sänby Mälik rather than the recognition,by Mälik, aswas mentioned earlier. Consequently, it can be seen that the M iliki School recognize istihsän as aproof of shari `ah; however, their views of istilzsänare somewhatdifferent from thoseof the HanafiSchool. The Mäliki School views istiIndn as departurefrom giyäs due topublic interest; istiinän for them does not go beyond being a mas1afaah(public interest) that requires the departurefrom giyäs, even though this maslahahdependson a proof of shari-`ah.The departurefrom giyäs is due to a necessity so that people do not suffer from hardship. This is explained in the book al-Muwäfagät: \"The one who `prefers' (i.e. to make isti/sän) does not refer to his own personal taste or desire, but is simply trying to obtain the purpose of the Legislator (i.e. God) which is to discover what are the obligatory duties. For example, in an issue that requires giyäs, but in which giyäs may leads to missing a ma#ahnh or bringing about mafsadah, the application of giyäs in absolute terms will inevitably lead to hardship in some of its sources, and therefore the possibility of harm must be avoided.\",141 This statementshows that the previous explanation is correct. Reference to a group of figh issueswill be referred to in the section on the effects of the application of istil sän on the construction of Islamic f: qh. Al-Shätibi concludes his sayings bytooShawkAni,\"Irshäd\", P: 240-141Shatib%\"A1-Muwäfagät\", v: 4, pp: 206,207.

The Conceptof Istilisän 159assertingthat this is a technique of proof (dalil) that shows the correctnessof this ruleand is the basis on which Malik and his followers constructedtheir views.142 This would explain the direction of the Mäliki School in recognizing istifardn,as it is limited to a maýiahah (public interest) as opposed to giyäs, while the Hanaffschool saysthis proof may be athar, ijma', giyäs khafiy, necessity,or masia/ah.3.3.3.1 The view of Abu al-Wal-id Al-Bäji (d.474/1081): Quoting from Mäliki jurist Ishäq bin Khuwaydh Mindäd (d.390/1000), al-Bäj!defines istihsän as \"Acting on a ruling based on a stronger dalil as compared toanother\"143,Qarafi (d.684 A. H) comments on this definition saying that \"in thismanner,it becomeshujjah by ijmd `, while actually it is not\". 144In fact, this definition,although it agreeswith other definitions as far as meaning is concerned, is criticizedfor the wordings or terms it uses. This definition is general and does not have anylimitation becauseit is basedon stronger evidence. Shätibi (d.790/1388) gives the following explanation: \"Istihscn according to us and the Hanafis is \"practising on a ruling based on the stronger of two evidences (dalllayn)\". 145On the other hand, this is also applicable to ndsikh (abrogating) with mansükh(abrogated);general (`äm) with particular (khäs), and absolute (mutlaq) with muqayyad (constrained). 3.3.3.2 The view of Ibn al-`Arabi (d.543/1147): According to Ibn al-`Arabi, istihsän is \"To abandon what is required by the law, when applying the existing law would lead to a departure from some of its own objectives.s146It is clear that Ibn al-`Arabi indicates that the essenceof istiihän is \"to apply a ruling basedon the stronger of the two evidences(darlayn)\". The explanation 142Ibid, v: 4, p: 207 143QarafT,\"Sharp TangTt', p: 451; BäjI, \"11*dm al-FusÜP', v: 2, p: 693. \" Ibid: P. 451. 145Shätibi, \"At-Muwäfagä\", v: 4, pp: 117,118. 146ShätibT,\"Al-I'tisäm\", v: 2, p: 139; Shätibi, \"Al-Muwiifagät\", v: 4, p: 207.

ChapterThree 160of this definition is that there would be a dalil, which concerns general principles, andwhich would be applicable to various cases.In some such cases, a da1il may lateremerge which is different -and preferable- to the first. This new dalil necessitatesaruling different to the earlier one. In such situations the mujtahid departs from thegeneralruling basedon the first dalil by the way of exception for this case;he acts onthe basis of the new da17to deduceanotherruling which departsfrom the generalityof the earlier dalil. The reasonfor this action of the mujrahid is basedon the generalprinciple of the jurisprudential maxims, which holds that: \"Repelling an evil ispreferable to securing a benefit\"147,or to keep away a mafsadah rather than obtainingmasla/ ih or to bring about a masiiak h, which would otherwise be missed if themujtahid actedon the basis of the first dalrl. Shätibi comments on this definition, saying: \"It is the departure from a rulingfor `urf, ma#aivh, or ijnO' avoiding the hardship in respect of the preferenceof easeto facilitate people's affairs.'48 3.3.3.3 The view of Ibn Rushd (d.595/1198): Ibn Rushd saysthat \"Istihsän's usageis so common that it exceedsgiyäs; it is the departurefrom a giyäs that leads to extremity and exaggeration in the ruling of a casewhich is basedon the meaning of an effective cause('illah) and thus influences the ruling of the case.149Despite all of these different explanations, the meanings are compatible with Ibn a1-`Arabi's definition. 3.3.3.4 The view of Ibn A1-Abyari (d.618/1221): Shams al-Din Abü Husayn al-Abyäri defines istihsdn as `%sing partial ma#a/ah (in the interest of the public) asopposedto generalgiyäs (analogy).\"150147Majallah: clause30.148Shatibi, \"A1-Muwäfagärt\",v: 4, p: 208.149Shatibi, ` I'ti¢äm\", v: 2, p: 139.150ShItibT, \"Al Muwäfagärt\", v: 4, p: 206.

The Concept of Istihsän 161Sha ibi interprets this as: \"the implication of using partial masla/ ah is to bringforward the mursal (discontinued) evidence (istidlal mursal) to giyirs\".'5' To explainthis `Abd Allah Diräz (d.1351) gives the example of someonewho buys goods of hisown free will and on his deathleaveshis heirs in disagreementas to whether to keepor returnthe goods.Istihsän,Diräz explains,would dictatethat if the vendorrefusesto take the goodsback, then it is acceptableto keep them.152 Consequently, isti vain thus defined cannot be expanded, as it is limited tomasla,x h mursalah. The discussionof this definition shows that it doesnot succeedindefining istihsän; it only makesisti jn4n applicable where the dalil, particularizing thegiyäs, is consideredasnothing other than maslahah mursalah.3.3.3.5The view of Shatibi (d.790/1388): Abü Ishäq Ibrähün a1-Shätibi,a Mäliki jurist, is one of the prominent scholarsdealing with the concept of magaýid (objective of the shad'ah). He considers istibsänas a source of Islamic law, but says that the interpretation should not be based ondesire, and that the jurists must have a full understanding of the intention of theLawgiver. When presentedwith a new problem the jurists will resort to istihsän if theuse of the strict application of analogy will lead to loss of maslal ah or the possibilityof evil. He defines isti/isän as \"An evidence embedded(yanqadihu) in the mind of thejurist but which words will not allow him to express\".153 The same definition hasbeen given by Amidi (d.631) and a similar definition given by Ibn al-Subki (d.771), Shawkäni (d.1250), Taftazäni (d.793), and Shaykh `Abd-Allah Diräz (d.1351). 3.3.4.0 The view of IstiInän amongst the Hanbali School:151Ibid: v: 4, pp: 205,206.ist Ibid: v: 4, pp: 205,206.1 Shätibi, \"I `ti cam\", v: 2, p: 137.

ChapterThree 162 The narrations reported about the Hanbali School's views on isti/zsän as aprinciple of shad'ah differ: somenarrations reported that ImAm Ahmad (d.241 A.H)recognized istifzsän,while othersreportedthat he did not. Abü Yä'1ä (d.458/1065) defines isti/ sän as \"leaving one hukm (ruling) foranotherstronger or better /xckm(ruling). \" He points out that the Qur'än or the Sunnahand ijma` will be reliable proofs while performing istihsän.154 Qadi Yä`qüb reports that istihsdn is the way of Imam Ahmad. It is \"Thedeparture from one ruling to another which has priority; no one can deny this. If thename differs there is no point in disagreementover terms when there is an agreementon the meaning.\"155This is basedon the statementwhich Ibn Qudämah (d.620/1223)narratesfrom Qadi Ya' qüb, who contendedthat isti, sänwith its meaning is generallyagreedupon.Ibn Taymiyyah narrates from Hulwäni: \"Hulwäni interpreted isti/zsän indifferent ways. In my opinion istihsän is probably the departure from giyds jail andother proofs to a dalli from the text of a solitary fadith (khabar al-wdfid) or anotherdal-il, or the departure from giyäs to a saying of a companion when giyäs does notapply. I have noted that al-Fakhr Ismä`il, in his book, \"Al-Jadal\", reports a similarinterpretation of istibsän. The Hanafi School agreedwith us in that when a companionsaid something in which giyäs finds its way, then it is taken as if the companion hadsaid that to avoid incorrect interpretation. The Shäfi`is opposed us on this issue.Similarly, the Hanafisagreedwith us on istihsän whilst Shäfiis disagreedwith us\"156 Ibn Taymiyyah's statement shows that recognizing istiizsän in the narrationwhich Qad-iYd'qüb reported from Imäm Ahmad, and which Hulwäni and al-Fakhr154Ab11Yä`1äMuhammad bin al-Husain bin Muhammad bin Ahmad bin al-Farrä' Hanbali(d.458/1065), \"Al- `Uddahf( Usül al-Fiqh\",Beirut, 1400/1980,v: 5, p: 1607. edt: Ahmad Sayr al-MubAraki, Muassasahal-'55Ibn Qudämab,\"Rawpht\", p: 85.116Ibn Taymiyyah, \"Al-Musawwadah\", p: 451.

The Conceptof Istilzsän 163Ismä'1 support, is a proof if it is based on dalil. This means that we depart from giyäsbasedon such a dalrl whether this dalil is a solitary khabar or another report. if thedeparturewas due to a saying of a Companion, then following this method confirmsthat istihsän is a proof for them (Hanbali) and there can be no disagreementover thisissue.The narrationconfirming isti, sän as a proof comesfrom Maimüni, and isquotedby Ibn Taymiyyah: \"Our shaikh said that Ahmad used istilzsänin many cases\".In the Maimüni narration, Imäm Ahmad is quoted as saying: \"I prefer (astahsinü)tayammumfor every prayer, and the giyäs here is on equal footing with water wherethe ritual prayer can still be performed until the wuo1 (ablution) is invalidated or untilthe water becomesavailable\"157.This narration thus shows that isti, sän is a proof forImäsnAhmad where it can be traced clearly in manyfiqh issues. However, Abü Talib reported that Imam Ahmad did not resort to istibsän. He says that when the followers of Abn Hanifah encountered an issue opposed to giyäs, they then adoptedit and departedfrom giyäs. This leads to the conclusion that when faced with an issue which is opposedto giyäs the correct thing to do is depart from giyäs to istiizsän. 156 This leads to the conclusion that from the Hanbalis point of view, one cannot depart from one giyäs to another giyäs; rather, departure from giyäs can only be sanctioned by nass be it a vdith or other reports. This could be explained best by Abü al-Khatb (d.510/1116) who is reported in the Musawwadah as saying: \"For me, he (imäm Abmad) denied the istihsän without evidence, which is why he said that the Hanafrs departed from giyäs which they claimed was right (? qq). If istih än was based on dalil, they adopted it and he (imäm Ahmad) did not deny it, becauseit was157Ibid: p: 452.158Ibid: p: 452

ChapterThree 164right (/iaq). And he said: I follow the hadith and I do not perform giyäs basedon it,this meansthat I departfrom giyäs by khabar, which is istibsän by dalil\"159 Ibn Taymiyyah explains this asmeaning that when he seesan indication whichis stronger than giyäs, the mujtahid is led to depart from giyäs and to adopt thatindication without invalidating giyäs itself. This is about departing from giyäs zähir(explicit analogy) to giyäs khafty (implicit analogy) which is stronger and refers tospecifying the cause(takhscqal- `illah). Ibn Taymiyyah prohibits the specification of `illah while he supportsthe adoption of istihsän, whatever the reasonfor the departurefrom giyds and when it refers to a strongerdalil, be it text or other reports.160. Ibn Taymiyyah refers to what Qa(f said in reply to AbU al-Khattäb'sstatement. He says that there is a difference between the specification of `illah andthe departure from giyas to khabar (report). This is becausewhoever speaks of thevalidity of takhsfsal- `illah may depart from giyäs for a dalil or without a dalil; thisprevents its meaning from being subjectedto takh is (specification) with evidence.Ibn Taymiyyah responds by saying: \"If we do not adopt takhsfs al- `illah this takes away the restriction located in takhsfsand makes it a restriction in the `illah (cause); this explains that the 711ahis incomplete. As explained by the specified (al-mukhassas) that it is not completed, thus there is no difference between the specification and non- specification of 711ah.This is what Abü al-Khattäb said and it is in agreement with the saying of a1-Bari and Ibn Al-Khatib and others.s161 This leadsto the conclusion that istilzrän for Abü al-Kha äb is an `illah which is stronger than the giyas and is opposedto giyäs, irrespective of whether this dali! is a khabar or implicit giyäs (giyäs khaf,iy). Thus he supported the departure from one159Ibid: p: 452.160Ibid, p: 453.161Ibid, p: 454.

The Conceptof Istitndn 165giyäs to another; this departureis known as takhsfsal-`illah. Thus this HanbaliScholarhas invalidated the report in the secondnarration. Al-Hulwani (d.44811050)however, sees istihsän with the same view as theHans. For him, istihsän is more general than both Abü al-Khaatäb's definition andwhat has been reported in the earlier narration. In one case he says that it is thestronger giyäs and in another,he says,it is the stronger dalil, and this is more generalthan the first. This would mean that istihsän for him may be basedon the Qur'an, theSunnah, or ijmd `162 For Najmuddin al-Tuff (d.71611316),the definition of istitWn was similar tothat of Ibn Qudämah.However, his definition was more comprehensivein spite of IbnQudämah confining the evidence to the Qur'an and the Sunnah. Al-nfi- expandsthemeaning of istilzsin to cover all of the adillah sharT`ah (legal proofs). He definesistiizsän as \"A departurefrom the existing precedent,by taking a decision in a certaincase different from that on which similar cases have been decided in the light ofspecial adillah shari `ah (legal proof). \"163 In conclusion, the Hanbalis recognize istilzsän in spite of their disagreementover the meaning; some interpreted it as the departure from giyäs to the saying of acompanion or a solitary fadith (khabar al-wähid), while others saw it as a departurefrom one giyäs for a stronger dalil, or as a departurefrom one giyäs to a stronger one.Only Abü Talib dismissesistf ludn as a ruling basedon personal desire. . When we examine the Hanbalis and what they said on the subject of istifxsänthe following could be concluded: 1-The majority of the Hanbali Scholars agreethat istihsän is the departurefromgiyäs to a dalil stronger than that giyäs, even though they use different expressions.162Tbid,pp: 454,455.163Al-Tüfi, \"Sharp al Mukhta, sar\", v: 3, p: 197.

ChapterThree 166Some of them say that it is the departurefrom what giyäs requires to a dalil which isthat which is stronger compared to that giyäs. Others say it is the stronger of twogiyäs, and so on. 2-All of them- basedon this definition- accept isti/zsän,and consider it to bethe way of Imam Abmad, whom they portray as resorting to isti'isän based on thisdefinition. 3-Given the above, istihsän is not an independent proof, but is related toweighing proofs againsteachother, asIbn Taymiyyah confirmed earlier. 4- They reject any kind of istihsän that is based on personal desire withoutdalil, and considerthis to be legislating in shah `ah that which God forbids. 5- They arenot in disagreementwith other scholars, as all scholarsrecognizedistihsän aslong asthe departurewas from one dalil to a strongerone. 6-The report which claims that Ahmad denied istihsän does not convey a cleardenial. In spite of this Abü al-Khattäb (d.510/1116) interprets this as denial of istihsänwhich is not supportedby a dalil. In such situations the original rule remains intact.That is Abmad recognized isti?vdn aslong asthe departurefrom giyäs is by a dalil. 164 In short istitnan is a principle of shad'ah for the Hanbahsin spite of their disagreementon how to arrive at istilzsän.As for those who said it is not a principle (e.g. Abn Tälib), they were referring to istiludn without a dalil, which springs from hawä' (desire); there was no disagreementover this. Thus it can be said that the Hanafs, Mälikis and Hanbaiis agreed upon the recognition of isti judn in spite of the different ways they conceived of the departure from one ruling to another.\"I `Abd Allah b. `Abd al-Muhsin Turlü, \"USt l Madhhab al-Imam Ahrnad Ibn flanbal- DiräsahUsüliyyah Mugäranah (UUtiI comparative studies)\", Cairo, First Print, 1394 H-1974 'Mn ShamsUniversity Press,Cairo, p: 515.

The Concept of Istihsän 1673.3.5.0 The view of istihsdn amongst the ShI`ah Jurists:3.3.5.1 The Imami Shi'ah: The Imami Shi'ah do not acceptisti j sän at all and rejects the performance ofgiyäs (analogy). It is their belief that istilnin has been approved without evidence,and thus they do not give any credence to the istitniln rulings. '65 They claim thatistihsän and giyäs are not consideredasproof if they are not basedon explicit textualor reasonableevidence; furthermore, they are obviously forbidden as they are based 166on assumption.3.3.5.2 Zaydiyyah jurists: The concept of istihsän among the Zaydiyyah thought is close to the Hanafis.The Zäydiyyah and Hanafijurists consider istitVdn as part of analogy.167It is definedas \"A departure from one established ruling to a stronger one.\"168 The Zayd!definition of istiludn is very close to the Hanaffdefinitions. While Karkhi's definitionand that of the Zaydis is similar, the meaning is exactly the same even thoughKarkhi's definition has been criticised because it included the takhgs al-`illah(particularization) within the scopeof istilman.169 In the Zaydiyyahschool of thought,the condition upon which istihsän canoccur is if the departure is from one speculative proof to another. First, both mustfulfil the conditions of eligibility and one of them must be stronger and preferable.170if the proofs are both giyds, or one is giyäs and the other is a hadith (khabar, athar), there is nothing to be considered, since istihsän is based on the principle that \"No165Abt Zahrah,\"A1-Imwnal-5\"adiq\"p, p: 527-529.161Ibid, pp: 527-528.167Abü Zahrah,\"Al-ImamZayd yätuhiiwa `Ac; uhu- Arduhuwa Fiqhuhu\",Dir al-Nadwahal-Jädiydah,Beirut,p: 438.168Ibid. p: 438.169Basil, \"Al-Mu`tamad\", v: 2, p: 296; Taftazäni, \"Talwi, t', v: 2, p: 162; Ibn al-Fiajib, \"Muntahd', p:207; Bukhärl, \"Kashf al-Asrär\", v:4, p: 3.170Abü Zahrah,\"Al-bndmZayd', p: 439.

ChapterThree 168conflict occursbetweentwo definite proofs\". The conflict betweentwo definite proofsis only to be taken into accountwhen considering naskh (abrogation), and so it is notan istilxsän. Indeed, the Zaydiyyah declare that istihsän can not be based on definiteproofs, owing to the jurisprudential principle which accordspriority to definite proofsover speculative proofs. Conflict arises only when both proofs are speculative. TheZaydiyyah also point out the conditions of giyäs, which is against the isti/zsän,mustbe fulfilled. 1713.3.6.0 The view of istilhsff'namongst the Zähiriyyah Jurists: The foundation of Zähiriyyah (Literalists) thought is based on the literalmeanings of the Qur'an and the Sunnah.The jurist Dawild Ibn `Ali (d.270/884) is thefounder of this school; his most famous disciple was the belletrist, poet, historian,theologian, jurist, philosopher, and polemicist Ibn Hazm (d.456/1064).172 TheLiteralists instructed their followers in the superficial rather than the deepermeaningof the Qur'an and the Sunnah. According to the Zähiriyyah, the primary source of the Shari`ah is the text ofthe Qur'än, in accordancewith the verse: \"0 you who believe! Obey God and obeythe Messenger(Muhammad) and those of you (Muslims) who are in authority. (And)if you differ in anything amongstyourselves,refer it to God and His Messengerif youbelieve in God and in the last day. That is better and more suitable for finaldetermination.s173Citing the verses \"... we have neglected nothing in the Book,\"lea,\"the Book is an exposition of everything\". 175\"... I have perfected your religion for1\" Ibid. p: 439.172A. G. Chejne, \"Ibn Ham\", preface,Kazi Publications inc. Chicago, USA, 1982,p: vii.173Qur'an: 4/59174Qur'än: 6/38375Qur'an: 16189

The Concept of Istihsän 169you, completed my favour upon you.. \"176, \"and that you may explain clearly to menwhat is sent down to them...\"177,Ibn Hazmindicates that every aspectof life and allhuman needs be they material or spiritual, are provided for in the Qur'än, andtherefore no divergenceis allowed from the text of the Qur'än except where one verseis abrogatedby another.178 As indicated in the Qur'än, the secondsource of the shara`ahis the Tradition(herdith), which is a record of the Prophet's acta and dicta. The Prophet is deemedtotally trustworthy, as the Qur'än itself confirms: \"Nor does he speak of (his own)desire. It is only a Revelation revealed.s174'80 The last source is consensus (ijmä `) which for Ibn Hazrn signifies the generalagreement of the Companions of the Prophet. However, it is a further condition thatthey all should be aware of the matter agreed upon and no one should have anydisagreement. Beyond this he does not accept any other principle as a source of law;therefore he rejects giyäs (analogy). lsl Accordingly, istihsän is also rejected on the following grounds: \"Those wholisten to the Word and follow the best thereof those are the ones whom God hasguided and those are men of understanding. \" 182Ibn Hazm says that this verse isevidence against, rather than support of, istifsän and giyäs. God does not say theyshould follow what they consider best; He says, \"Follow what He considers best\".Therefore, the best words are those which conform to the Qur'dn and the With, andnot to something that man considers best. Also ijmä `(consensus) fits in with this, andwhoever apposes it, will be considered a non- Muslim. According to Ibn Hazm, GodX76Qur'än: 5/3 v: 2, p: 197,171Qur'än: 16/44118Ibn Ham, \"AI-Nubadh\", p: 43.179Qur'an: 53/3-4180Ibn Hazm, \"Al-I/ am\", v: 2, p: 253.181Ibn Haim, \"A1-Nubadh\", p: 44; Ibn Ham, \"AI-Ilkäm\",' Qur'än: 39/18

ChapterThree 170explains this with the following verse: \"... and if you differ in anything amongstyourselves, refer it to God and His Messenger,if you believe in God and in the LastDay. That is better and more suitable for final determination.\" 183Here it can be seenthat God doesnot say `refer it to what you considerbest' (mrr tastahsinü); in additionit is impossible that the truth (al-fxigq) will be in what we like (mä nasta/i inü)without proof. If it were so, God would have commanded something that he did notwish, in which casetextual evidence and proofs would contradict one another. Thiswould also mean that the God had orderedus to differ when He actually prohibits usfrom doing so. It is impossible that all scholarswould like the samething, taking intoconsideration the difference in their inclination, nature and objectives, so it isimpossible to achieve complete agreementon any one issue. He goes on to say \"Wesee that what the Mälikis consider good, the Hanafis may consider bad and vice versa.This proves that consideration of istihsän is wrong becauseGod's religion does notrevolve around other people's considerations;it would apply only if the religion werenot complete. But the religion is complete without requiring any extension or supplementation. 'The truth is the truth (al-hagqu faagqun)even if people dislike it, and wrong is wrong (al-bäilu bätilun) even if people like it.\" He later describes istihsän as a passion(shahwah),an inclination (hawä'), and an error (daläl). 1M Ibn Hazmbelieves that the very fact that one acceptsa giyäs and then departs from it is enough to invalidate isti. nan as a principle. For there would be nothing to favour one jurist's istihsan over another's. If the religion of Islam were based on istikdn everyonewould have the right to legislate whatever they desire.185183Qur'dn: 4/59184Ibn Hazm,\"Ai-1*dm\", v: 2, pp: 195-196;Chejne,\"Ibn thzm\", p: 122.185Ibn Hazm,\"Mulakhkhas\",edt:Saida1-AfghänDi imishq,1960,p: 50.

The Concept of Isti/zsän 171 It can be concluded from this statementthat Ibn Hazmcategorically objects toistifzsän and believes it is not a principle of law. The invalidity however is not onlyconfined to istiInan but also is extended to giyäs. Those who denied istihsän,including Ibn Hazm,seemsomewhatextreme. What is the motive behind their denial?For as we have seenfrom the views of those who support istihsän, the principle doesnot go beyond the departurefrom a ruling due to a stronger dal-H. Ibn Hazm, among others, seems to be lumping the juristic preference ofscholars together with the opinion of the layman, implying that ajurist's ruling basedon a considered proof is the same as a layman's opinion that is based on personaldesire. In short, the group who denied istilndn did so to preservethe agreeddalil andto avoid any other rulings. The scholarswho are mujtahid recognized only the rulingsof the Islamic shah `ah and consideredthe abuseof suchrulings a remote possibility.3.3.7.0 The view of istitw n amongst the Mu'tazilah jurists: Bishr b. Ghiyäs b. Abi Karimah `Abd a1-Rahmänal-Mar si (d.218/833), afollower of the Sh `Ts,the Murjirtes (Mu`tazili) and the Hanafis,was also a specialdisciple of Imäm Abn Yüsuf (d.182/798) and a famous theologian. He attributes toAbü Hanifah the following definition: \"Istilndn is a departure from analogy based onpersonal opinion which can be considered right without requiring evidence.\" Al- Bash (d.436/1044) recognizes istihcän as a principle of shah `ah as long as the departure from giyäs depends on a dalV. Al-B aýri's view holds more credence than that of others who disagreedwith the Hanafs, bearing in mind the fact that he himself was from a different school. His view is also confirmed by other scholars of different jurisprudential persuasions.186Zarkashi,\"AI-Bah\", A. p: 93; Shiräzi,\"Sharhal-Luma\"', ii, p: 969.

ChapterThree 172In al-Mu `tamad,al-Basil explains: \"Let it be known that what has been said by the followers of Abü Nanifah is that he recognizes istihsän, and many of those who rejected istitudn thought that they (the followers of Abü Hanifah) meant that is it a ruling without dalil. In addition, what the later Hanaffs stated is \"Istiludn is the departure from one ruling to another that is stronger.\" This has priority over what those who disagree with them thought; the people of knowledge are more aware of the aims of their predecessorsT. hey statedin many issues:\"We preferred this athar, for such a reason\" and thus we came to know that they did not prefer something without following the proper procedure.That which invalidates such a ruling is either its being a ruling out of desire, or one based on whatever comesto mind first; or tann (speculations); or an amärah (indication) to that ruling. These are as attainable by a child or a member of the public as they areby the scholar. This would meanthat we would have to accept all of them equally, and nobody would be blamed for ruling in that way, becausethesematters deal with baqq (right) and bä(il (wrong), and because znnn (speculation) without amärah (indications) is not distinguishable from the speculation of a mad man. The talk aboutistifxsänasexplainedby the followers of Abü

The Concept of Istihsän 173 Hanifah concerns both meaning and definition. As for the meaning, some indications (amOrah) are stronger than others. It is permissible to depart from one amärah to another without invalidating the one that has been departed from This is referred to as takhgs al- `illah (specification of the cause).\"187 Al-Basrfs views afford us the best defence so far of the recognition ofistilzsän. As a theologian, al-Basri recognizes istifzsän as a principle whether it is adeparture from giyäs owing to a naffs or ifmr', or a departure from giyäs Ahir(explicit analogy) to a giyäs khafty (implicit analogy) stronger than the first. Hedefines it clearly with the following words: \"Isti'sän is a departure from theestablished ruling to another ruling, when the reason (dalil) in the second is strongerthan the one found in the first, and other fresh evidence is provided (hukin al-kzri) vis-ä-vis the previous one.\"' 88 Al-Basri states that many of those who reject istihrän assume that it is thederivation of rulings without evidence.However, he believes that the disciples of AbüHanifah did not perform isti/zrän randomly. Rather, they used proper methods andways of reasoning, as is evidenced by statements such as \"we approved istihsändepending on this athar and evidence (istabsannähädha al-athar, wa liwajhi kadha)\".This makes it clear that they do not approve isti jndn without depending onevidence.189187Basil, \"AI-Mu`tamad', ii. pp: 838,839.188See:Hasan,\"Analogical Reasoning\", p: 410.189Bagri, \"AI-Mu tamad\", v: 2, p: 295.

ChapterThree 174 Al-Basri s view seemsentirely logical, for it is unreasonableto assumeto thatso many scholarsfrom the different schoolsof jurisprudence were given to producingrulings on a whim and without sufficient evidence. These are the opinions of the scholars who gives their opinion about istilaränas a principle; I have presentedtheir views separately, since they differ from onemadhhab to another.3.4.0-FURTHER EVIDENCES OF THE VALIDITY OF ISTIFISAN In the previous section,I discussedthe various technical definitions of istihx naccording to various schools and scholars. Anyone who examines these definitionsshould be able to distinguish between those who consider istitWln as a principle andthose who reject it. The historical development of istilzsän has been traced. Lastly,opinions of the early Hanafi scholarsand their applications of istihsän have also beenexpounded. I shall now look in greater depth at the ways in which different groups eitheracceptedor rejected istiizsänas a valid principle of Islamic law. First, isti? sänwas defined as a departurefrom a ruling on an issue to anotherfor a reason that is stronger. Similarly, some scholars consider istihsän as evidenceopposed to qiyas or departure from one qiyas to a stronger one. Such scholars see istilzsän as a principle of shari`ah, the effect of which appearsclearly in many issuesof figh. Hanafi, Mäler, Hanbali and Zaydi schools of thought followed this path, butfor the Mäli cis istilzsändiffers from the others.190 Secondly, those scholars who consider istifsdn to be whatever the mujtahid baseshis intellectual judgment on, or judgments judged by personal opinion, 191do not190Bukh3d, \"Kashf', part 4 p: 3; Hasan,\"Analogical Reasoning\", p: 410; Bukhäri, \"Shay//' v: 4, p:3;Taftazäni., \"TalwT\"r, v: ii, p:163; Ibn al-liajib, \"Mw, tahX', p: 207; Nasafi, \"Kashf', v:2, p: 164.191MäwardT\",Adabal-Qa{!i\", i, p: 651;Ibn Fiazm,\"Al-Ahkitm\", 61757.

The Concept of Istihsän 175consider isti, sänas a principle of shari `a.Rather, they seeit as a ruling that hasbeenarrived at out of personal desireand whim without any evidence from the Qur'an, theSunnahor ijmä'; assuch, it constitutesnothing other than a man-madelaw that hasnoplace in Islamic jurisprudence.192Hence the well-known statement of Shafi`i, whorepresentsthe group of scholars who reject istihsän as a principle of shari `ah \"Manistalzsana faqad sharra'ah\"(whoever approves of juristic preference is makinghimself the Lawmaker).193This will be clearer when we discussthe views of scholarsin detail. It is representedby the Shafi`is, zdhiris and the Shi`ah. However, Amidi andTaftazäni, both of whom follow the Shäfri school, recognized istifxrän194as did theMutakallimün (Theologians) and Abü al-Husaynal-Base.195 Lastly, there are those who took the middle ground between the two sides;they did not view isti/hsänas an independent principle, but referred it to the otherprinciples already agreed upon among scholars, namely the Qur'än, the Sunnah,ijmä'and giyäs.196IstiInan according to such points of view does not extend beyondthese four principles, which have been agreed upon. Thus the holder of this viewneither rejects the proof of istihsän, as Shäfi`i did, nor does he say that it is an independent principle, as the Hanafi, Mdliki and Hanbäli jurists did. This group ofscholars is representedby ShawkänI(d.1834).147 It should be noted that some Mäliki and Hanbali scholarsreject istiludn while other scholars of thesetwo schools accept it, as was discussedin detail earlier when we explored the views of various jurists.19'ShWfi`1\",Al-Risälah\",v: 3, pp: 219-221.193 AlWani, \"A\"Tl-hI/e1cEätmhi\"c,si\"v,,pp: :7153;A6,nAsl-aTra, f\"tGazhäänyi,a\"taAll--WTaulwsiüli'P, 'p,v::123,9p.: 82.194Amidt,'95Basil, \"Al-Mu`tamad',ii. p: 838;Amtr Pädishah\",Taysir\", v: 4, p: 78;Ibn al-Humäm,\"Al-Tagrir\"v: 3, p: 222;Iji, \"Shar/f', v: 2, p: 288;Ibn Qudämah\",RawGht\",p: 85.'9 `Abd al-I fiz, Madiha `Ali, \"Al-Istihsän wa Atharuhü ft-Bina al-Fiqh al-Islirmi ', PhD dissertationat Faculty of Arabic and Islamic study at Al-Azhar University, Egypt, 1984,p: 76.197Shawkäni\",Irshdd', p: 231.

ChapterThree 176 This section will explain the reasonbehind the disagreementover istihsän as aprinciple of law and will be elaborated on, following an overview of the variousevidences to justify the claims of those who consider it to be a valid principle ofshah `ah, and those who do not. Both groups discussedeach other's arguments withthe aim of invalidating each other's claim while upholding their own. As thediscussion was not limited to the opinion of one group, but included the opinion oftheir opponents and supporters, it gave way to many discussions, which we willdiscuss separately.3.4.1 Reason for disagreement over the validity of istihsä'n Before discussing the views of the `ulamd' (jurists) on istitndn, it is worthexploring the reasonsbehind the disagreementsamong them as to whether istihsän isa principle of shari`ah or not. The opponents of isti jndn are those who see it as \"Arbitrary law makingwithin religion\", mainly because they did not understand what the supporters ofistihsän -the Hanafis,M Wilds, and Hanbalis-meantby the term. In the early Islamic period, the term istihsän and its exact meaning were notdirectly defined; it was applied in judgments without any specific definition orexplanation being given. Supporters' considerations are based mainly on thefundamental principle of securing easeand avoiding hardship. This procedure of theusageof istihsän was misunderstoodby its opponents.Shätibi is of the view that the point of dispute relates to severalissues: 1- Istihsän relatesto \"the people of innovation\" (ahl al-bid `ah) who makestatementsthat arefar from the ahkümal-din (rulings of religion) and attempt falselyto presentit asthe form of istilzsänthat the scholarshave adopted.

The Conceptof Istiizrän 177 This may have been one reasonwhy scholars refused to accept istifiic n as aprinciple; this refusal might have been becausethey intended to tighten the noose\"around the people of innovation\" and thus prevent misguidance wherever possible.These scholarsbelieved that since it is possible for anyone to use istitndn, it could beused as an excuse to propagate self-opinion and thus lead to the collapse of theprinciples of religion. 2- Istihsän doesnot materialize unlessthere is a mustalnin that makesistihsänvalid; such a musta/sin hasto be either the spar` (law) or `aql (intellect). If it is spar`then the issue is already resolved as the evidence in shari `ah has shown, andconsequently following the daIFI (evidence) cannot be called istihsän. In suchsituations there is no need for additional interpretations to the Qur'an, the Sunnah,ijmä ` and whatever is derived from them in the form of giyäs and dalil. As for `aql, if isti&dn by way of `aql is basedon a dalil (evidence) then thereis no point calling it istifasän;since the referencehere is the dalil and nothing else. If,however, istihsän is by the way of 'aql without any dalil, then it is a bid'ah(innovation). This might have been the reasonwhy some scholars said that istifzrän isnot valid, or the reasonthat made somerefer istirnan to other sources. 3-Those who differ with the above view do so if the action is based on thestronger of the two dalils (proof) which they state is a proof when the general (`am)continues and when the giyäs is directly proportional. Both Abü Hanifah and Mälik specify the general by implicit or explicit dalil (proof). Although Malik prefers to specify generality by masla/xzh(public interest) whilst Abü Hanifah prefers to specify by solitary (aj d) fxidith from the companions when it is opposedto giyäs, they both

ChapterThree 178recognize specifying giyäs and disqualifying the cause (`illah). However once theevidence is established,Shäfi`i doesnot acceptspecifying the `illah of shay\"\". 198 This is what could be understood from Shätibi who clarifies the point ofdisagreementby saying: \"As for istif sän,since the \"people of innovation\" have linksto istihsänit cannotbe without a mustatnin(recommending)a, ndthis can eitherbe`aql (reason)or shar'. As for shar', to approve or disapprove is immaterial since theissue is already settled; the evidence has already decided the case and calling itistiizsän is of no use, nor is attempting to lay down any extra interpretation. Theexception to this rule is that which has been establishedby the Qur'an, the Sunnahand ijmä' from giyäs or by istidläl (inferences). Only one thing remains -`aql(reason)- as the tool of choice. If reasoning is with evidence then there is no point incalling it isti1sän,since as a referenceit becomesthe da!ii. If it is without dalil then itis bid'ah (innovation). M51ik and Abü hlanifahrecognise that it is worth consideringistihsän in aiiiäm; this view is opposedby Shäfii who denies it to such an extent thathe said: \"Whoever gives approval places himself as the Law-giver. \" What could beconcluded from their madhhab (i.e. Mälik and Abil Hanifah) is that it refers to acting according to the stronger of two dalrls. This is what Ibn al-`Arabi (d.543/1148) stated: \"the general if it continues and giyäs if it is directly proportional, and Malik and Abn Hanifahseetakhqý;of the generalby any dalil, implicit or explicit. \" He (Ibn al-`Arabi) said; \"Malik prefers to specify with maslalxrh and AbU Hanifah prefers to specify with the solitary saying of a companion, which is opposedto giyäs.\" He said: \"And both specify giyäs and reject the cause, whilst Shy `i does not accept any specification of `illah (cause)of spar' once shar' has beenprovedss199.198Shätibi, \"Al-1`ti cam\", v: 2, pp: 136,137199Ibid, v: 2, pp: 136,137.

The Concept of Istitnan 179 It is possible that the above statement is Shätibi's explanation of thedisagreementthe scholars have over the validity of istilxsdn to deduce the shari-'ahrulings. The reasonsof disagreementmight be very different; for example, it may referto the linguistic meaning of istii sän. Linguistically istiiacan covers all meaningsincluding the mujtahid's preferencebased on evidence (dalil); whatever is preferredby way of personal desire (tashahhi and hawa); and whatever the public prefer. It isthis general linguistic meaning which might have been the reason for some to rejectistitisän as a principle of law. The linguistic terms have already been discussed inprevious chapters. The above summarizethe reasonsbehind the disagreementamong the `ulamä'of ucül (jurists of the principles of Islamic law) over the validity of istihsdn. The main point of discussion concerning the validity of istihrän is, as far as Iknow, what Shibi stated was a precautionary measure against those who wouldtighten the noose around the \"people of innovation\" (ahl al-bid `ah), who try to interpret the religion and invent whatever is necessaryto suit their own interests anddesires. We now turn to the opinions of the `ulamä' (jurists) who consider istihsän as a principle and those who reject it altogether. We will explore the opinions and discuss the evidence they provide to determinewhether istihsän is a valid proof that should be acted upon. 3.4.2 The `ulamd' who recognize istilwan As we have seen,most scholars confirm that the concept of istilzrän is recognized by the Hanafi, Mäler, Hanbali and Zaydi schools. However, despite the

ChapterThree 180fact that `ulamä' from thesedifferent schools recognized the validity of istihsän as aprinciple they often disagreedover the meaningof the term. The cause of the differences of opinions about the way istifzsän is directedtowards the deduction of juristic rulings is the technique with which each madhhab(school) presentsthoserulings. Hanafi scholarshave used two techniquesto prove thevalidation of istilydn. The first technique is to identify its true nature and framework,then distinguish the types of istifnän. Following this, they consider the variousrelationships between types and then relate a particular isti/sr n individually in thecontext of shar`i dalil (valid sources)200which is a recognized proof by the otherschools of thought. The secondtechnique is the expending of effort in order to provethe validity of istiizsän as a recognized concept for everyone201The first techniquewas discussed earlier through in various examples. We now turn to the secondtechnique, which is presentingthe evidenceneededto prove its validity. The supportersof the validity of istihsän resort to proof from the Qur'an, theSunnah, and ijmn`. According to Hanafi scholars, to perform isti?zdo is to complywith Qur'anic verses which command man to follow what is best, good andbeautiful. 202Three verses from the Qur'än are mentioned by this group to support their claims. The first is the verse in which God addressesMoses concerning the Torah: \"(and said): Take and hold thesewith firmness, and enjoin thy people to hold fast by the best in the precepts\".203 The people of Moses were ordained to follow what is best; this is a common- sensegiven, and leads to the conclusion that acting according to the best is evidence by way of `aql and is supportedby shari`ah. Generally it is accepted that istinsän is200Dönmez, \"Kaynak Kavranu\", p: 168.201raeeas, \"Fusül\", 4. pp: 227-229; Sarakhsr,\"'Usül\", 2/200-201; Bukhari, \"Kashf al-Asrär\", 4/6.21' Sarakhsi, \"Uü1\", v: 2, p: 200; Nasafi, \"Kashf al-Asrär\", v: 2, p: 299.203Qur'än: 7/145.

The Conceptof Istifisän 181the departurefrom the good and acting according to the best when it is based on astronger dalil. It is not possible for any one to raise an objection to the ruling in thisverse by claiming that it is a specific commandment for the children of Israel only.And it cannot have been abrogatedby the Islamic shari `ah since Islamic law statesthat any ruling for those who came before us is also a ruling for us unless the textexplicitly specifies it as abrogated.As will be shown in the following verses,actingaccording to the best has not been abrogated by the Islamic shari-`ah; rather, theshad'ah supports of it. \"Those who listen to the Word (good advice), and follow thebest of t.,, 2°4 The above verse mentions the praise and appreciation of those who departfrom what is good in order to follow the better or the best. Nobody can deny that thepraise for taking an action, and the punishment for not acting, implies that actingaccording to the best is obligatory. But in the casewhere acting according to the bestleads to praise for the action, but not to punishment for inaction, then acting accordingto istihsän becomesoptional (mandüb). This shows that istilzsän falls between mandiib (optional) and wäjib(obligatory). However, those who validate istihsän may deem it wäjib as explained bythe following verse; \"And follow the best of that which was revealed to you from yourLord.\"205 According to Sarakhsi, \"The whole of the Qur'än is beautiful, but here itrequires following the best\"2°6.The versespraise the best of those words that were204Qur'än: 39/18.205Qur'an: 39/55.20'SarakhsT\"A, l-Mabsüf', v: 10,p: 145.

ChapterThree 182heard and listened to, and command man to follow the best of what is revealed.Istihsän is included in this and therefore it too is praised indirectly. 207 The above verse enjoins man to follow the best and to leave the evil. Istil, sändoes not by its nature stopthe jurist from departing from the goodto the best, which isa command; and a command implies obligation, according to `ulamä' of 'uAI (juristsof the principles of Islamic law). Therefore, following the best is obligatory and this iswhat is required as far as istihsan is concerned. Therefore, what is good should beobtained and what is bad should be avoided.208 Such proofs were put forward by those `ulamä' (jurists) who recognizeistiizsän.They can be referred to in the samereferences mentioned earlier during thediscussion on the views of the `ulamä' recognizing the validity of isti/zsän. Theseversesstrengtheneachother and show the validity of istikan.3.4.4 Denial of the validity of istitwffn: The group who denied the validity of istihsän discuss the proofs put forwardby the group who recognize isti/ sänin the following way: As far as the first dal-11from the Qur'än209 is concerned, the opponents of istihsän statethat this dalil is contrary to what the supportersof istihsän claim, and is against rather than for isti/uän. This is becausethe order (amr) in the verse is not aiming at acting according to istihsän as an obligatory principle; here, God orders the children of Israel to act according to the best that was revealed in the Torah, and not the isti, sän claimed by its supporters.God orders the `children of Israel' to take the best of the texts that were revealed in this divine book. The ruling at hand' then has been deducedfrom the text rather than from an opinion or a whim. Even if we accept207Amidr, \"AI-I( m\", v: 4, p: 393; Bukhäri, \"Kashf ', v: 4, p: 13.208Ijt, \"Shari Mukhtasar\", ii. 384.20 Qur'an: 7/145

The Concept of Istifsän 183that this text implies permission to act according to istitzsän,then this permission wasspecific to the Jews rather than the Muslim community, and most of these rulingshave been abrogatedby the Islamic shad ah. The opponentsof istijndn criticize the interpreting of versesin this manner bythe principle's supporters.Ghazäli claims that the objective of the verse that requiresfollowing the best is the evidence: whenever people see something is good by their`aql (intellect) alone it should not be consideredas a dalrl (proof).210 As for the secondevidence from the Qur'än211,the opponents of the validityof istiludn put forward three objections, according to a1-Mäwardi 12 First objection: God orderedhim (Moses) to follow the best (al-absan) and notwhat is perceived asthe best (al-mustahsan).Al-ahsan (the best) is that which in itselfcontains goodness,while al-mustafzsan(what is perceived asbest) is what others viewor prefer as good, even if it is not. Hence, both types are very different and it becomesobligatory to follow the best (al-ahsan) rather than that which is viewed or preferredasbest. Second objection: It is clear that the best has to be followed, since there arerewards for obedienceand punishmentfor disobedienceT. his is obvious and hasnoting to do with istihsän. Third objection: As the gisds verse (2:178) demonstrates, the best isunderstood as that which man must fulfil in order to do what is right. In the contrast ofthis verse, for example, forgiveness, while portrayed as better than giSäs, is stilloptional rather than obligatory.210Ghazäl7,\"Musta s W', v: 1, p: 277.211Qur'än: 39/18212Mäwardr,\"Adabal-Qädi ', v: 1,pp: 655,656.